Republican leaders ask Supreme Court for stay of court decision

Photo credit: A.D. Modlin

Senate President Ty Masterson and House Speaker Ron Ryckman Jr. are getting involved in the court battle over the constitutionality of the state’s emergency management law.

Masterson and Ryckman late Thursday night sent a letter to the chief justice of the Kansas Supreme Court asking her to delay a lower-court ruling that threw out a state law limiting how state and local governments can respond to COVID-19.

“The ruling’s attempt to invalidate the law has led to mass confusion about which laws are in place pertaining to public health orders and due process rights,” the leading lawmakers said in their letter to Marla Luckert.

“As a result, cities, counties, school districts and citizens are currently in legal limbo, operating under differing interpretations rather than the framework of certainty that had been provided by Senate Bill 40.”

Masterson and Ryckman asked the chief justice to move hastily on the attorney general’s request to stay the lower-court ruling.

Ty Masterson

They said a decision would “provide guidance to the Kansas Legislature about any additional steps that may need to be taken to restore order during this critical period.”

Earlier this week, Attorney General Derek Schmidt asked the court to delay District Judge David Hauber’s ruling, which unwinds a law that allowed Kansans to challenge local state and local health orders in court.

Schmidt described Hauber’s decision as a “self-initiated constitutional controversy” that was “entirely improper.”

“The district court’s actions,” he wrote, “have combined to create unnecessary and disruptive confusion about the state of Kansas emergency management.”

Ron Ryckman

Gov. Laura Kelly has said her administration has already concluded that the state was working under the original emergency management law that was in place before the pandemic started last year.

Kelly has said she is not planning to issue an emergency order related to COVID, but needs a law to rely on in the event of another emergency that might hit the state such as a natural disaster.

Under the previous order, the governor could issue an emergency declaration for no more than 15 days unless approved by the Legislature or the State Finance Council, whose members include Kelly and leading legislators.

However, under that law, a disaster emergency may be extended just once for a specified period not to exceed 30 days, a point that was hotly debated last year when the governor declared a second extension past the original 30 days.

The old law, some argue, would set 45 days as the limit for responding to an emergency of any nature.

The law struck down by the judge allowed for multiple emergency extensions to be approved by the Legislative Coordinating Council, which only includes legislative leadership and not the governor.

The new law passed this year restricted the governor’s powers to an extent, but gave broad latitude to Kansans to go to court to challenge health orders issued by state and local governments as well as school districts.

Hauber declared the law unconstitutional partly because of limits it places on the judiciary to settle a challenge to a health order, including issuing a ruling within seven days or granting a judgment in favor for the plaintiff.

The judge refused to delay his order, raising questions in court over what kind of emergency management law the state would operate under if the existing law was unconstitutional.

In addressing case brought against the Shawnee Mission School District, Hauber zeroed in sections that allowed Kansans to go challenge health orders in court, a trend that is now reemerging with COVID-19 cases now on the rise.

On Thursday Johnson County commissioners agreed to require masks in schools with students as old as sixth grade.

The DeSoto School District will mandate masks for everyone when school starts up again next week.

The Blue Valley School District, meanwhile, announced Thursday that it will require all early childhood and K-8 students, staff and visitors to wear masks inside schools starting  next week.

And the Shawnee Mission School District expanded its mask mandate to include all  students and adults in district facilities.

The law thrown out by Hauber would have allowed Kansans to challenge those mandates, but a judge ruled that those provisions of the law were unconstitutional.

State, local governments and school boards, under the law, were required to hold a hearing on any grievance brought against a health order within 72 hours.

Any civil action brought within 30 days of the hearing must be heard in court within three days as well.

The law says a judge “shall grant relief” unless the court finds that the order was narrowly tailored to respond to an emergency in the least restrictive way possible.

A judge had seven days to rule. If the court didn’t issue a ruling in seven days, the plaintiff would be granted a judgment in their favor.

The law also provided the same grievance process for orders issued by cities and counties. It also applied to community colleges and executive orders issued by the governor.

The judge found that while the law was developed under the “guise of giving local governments the authority to address specific pandemic issues,” it actually “hobbled” their efforts by enacting legislation that would ensure lawsuits would be filed.

Hauber took particular aim at a provision of the law that declared a judgment in favor of the plaintiff if a decision wasn’t reached in seven days.

“It is difficult to fathom what the drafters of SB 40 used as a legal template for this default provision which seems to be unprecedented in the law,” the judge wrote.

“SB 40 essentially allows a hurried declaration of important legal rights, or allows a default declaration that lacks any judicial input,” he wrote.